Kathryn and Shelby Cullom Davis Institute for International Studies
The Heritage Foundation
214 Massachusetts Ave., N.E.
The United States incited
international furor this week when it vetoed renewal of the mandate
for the United Nations Mission in Bosnia and Herzegovina under consideration
by the U.N. Security Council. The United States expressed concern that
the new International Criminal Court (ICC) would attempt to prosecute
U.S. soldiers who participate in the peacekeeping operation even through
the United States has not ratified the ICC treaty.
The U.S. veto should come
as no surprise to ICC proponents. America's serious objections to the
ICC are well-known, and U.S. representatives gave clear warning that
it would consider vetoing U.N. peacekeeping operations once the ICC
entered into force. President George W. Bush must fulfill his responsibility
as Commander in Chief to protect American soldiers and citizens from
the threat of spurious prosecution by a court that has no lawful right
to try and punish U.S. nationals. Unless a compromise can be forged
that satisfies America's deep concerns, U.S. participation in and support
for future U.N. peacekeeping operations is uncertain.
To end the impasse, the
United States has proposed that the Security Council determine whether
individuals serving in a U.N. peacekeeping operation may be brought
before the ICC. This position is fully supported by the U.N. Charter,
which vests the Council with responsibility for maintaining global peace
and security. No single state may authorize a U.N. mission, and no state
or group of states can interfere with its activities. Thus, only the
Security Council is in a position to determine whether criminal prosecution
of peacekeepers by the ICC may be appropriate. Otherwise, the ICC would
be in a position to interfere with the Council's authority and obligations
enshrined in the U.N. Charter, to which ICC nations are party.
This reasonable approach
would allow the United States to veto prosecutions it considers without
merit, safeguarding Americans' democratic rights while allowing the
United States to continue working with the U.N. on missions around the
world. If such a compromise is not forged, the Administration should
end U.S. participation in peacekeeping missions.
Source of America's Concern. As an unaccountable legal bureaucracy
claiming the authority to arrest, prosecute, and punish nationals from
any country who are accused of war crimes, genocide, crimes against
humanity, and the undefined crime of aggression, the ICC invites political
manipulation. The United States must protect its citizens from a court
that would not observe such basic rights as trial by a jury of one's
peers, protection from double jeopardy, and the right to confront one's
Under accepted norms of
international law, the ICC should not even be a U.S. concern, since
the United States has not ratified the treaty establishing it. Indeed,
President Bush has "unsigned" the Rome Statute, notifying
the Secretary General of the United Nations that the United States will
not ratify it. A bedrock principle of the international system is that
treaties and treaty organizations cannot be imposed on states without
their consent. The statute violates international law by claiming that
the ICC has authority to prosecute and punish the nationals of countries
that are not party to it.
President Bill Clinton
waited until the last possible day, December 31, 2000, to sign the statute,
expressing grave misgivings over that "flawed" treaty. His
reasoning was that America needed a voice in the deliberations over
the ICC's structure so that its serious concerns could be properly addressed.
But America's efforts to change the ICC's structure were rejected by
most of the other nations involved in the negotiations. The threat became
very real on July 1, 2002, with the Rome Statute entering into force
after the required 60 nations--many of them undemocratic and few having
a major role in enforcing international peace--had ratified it.
In May 2002, U.S. Ambassador
to the United Nations John D. Negroponte explained America's concerns
when the U.S. voted to continue the U.N. Mission of Support for East
Timor. On June 20, White House Press Secretary Ari Fleischer echoed
those sentiments, stating that "the United States is very concerned
about U.S. forces on U.N. peacekeeping missions, and that they may be
subject to politically motivated prosecutions by the ICC." Proponents
of the ICC who chose to ignore these warnings professed outrage when
the United States followed through on its concerns and acted to protect
its citizens on June 30.
The debate is about nothing
less than the fundamental question of where ultimate authority lies--with
national sovereignty, which holds the only possibility of democratic
accountability, or with unaccountable and opaque international bureaucracies
that have no direct democratic link to the people over which they claim
jurisdiction. Given this question of first principles, President Bush
was right to state that the United States would not reauthorize the
Bosnia mission. The furor that arose obscures the main imperative: U.S.
military personnel must be protected from the possibility of politically
manipulated prosecution if the United States is to participate in U.N.
The Way Forward. In an effort to overcome this impasse, the
Administration has proposed a 12-month immunity from ICC prosecution
for soldiers on U.N. peacekeeping missions who do not represent countries
that are party to the Rome Statute. This period would be used to forge
a compromise on using the Security Council to arbitrate over potential
cases that involve U.N. peacekeepers. The ICC would be able to investigate
and prosecute a case against a peacekeeper only if the Security Council
were to vote its approval.
This reasonable solution
is consistent with the principles outlined in the Rome Statute. By their
nature, U.N. peacekeeping operations are not authorized by a single
state and are accountable to the Security Council. Its members should
be viewed collectively as the authorizing body alone equipped to determine
whether a criminal investigation by another international body is appropriate.
Such a process, given an American veto possibility, would provide ample
opportunity for the United States to protect Americans while participating
in and supporting U.N. peacekeeping. If such a sensible compromise is
shunned, the Administration should continue to veto renewals of peacekeeping
Conclusion. It is not in the interests of the United States
or the United Nations to perpetuate this impasse. The United States
has proposed a reasonable compromise--placing the U.N. Security Council,
as the ultimate authorizing body, in a position to determine whether
ICC investigation of U.N. peacekeepers is appropriate. If other nations
truly believe the international system can enforce justice through the
ICC, they should not object to giving the international institution
charged with protecting international peace a say in cases that come
C. Hulsman, Ph.D., is Research Fellow for European Affairs in the
Kathryn and Shelby Cullom Davis Institute for International Studies,
and Brett D. Schaefer is Jay
Kingham Fellow in International Regulatory Affairs in the Center for
International Trade and Economics, at The Heritage Foundation.